Mandatory Mediation?

Mandatory Mediation – Why Not?
MBA – Managing in the Legal and Ethical Environment
September 19, 2010

      Mandatory Mediation – Why Not?

      As we know, litigation is expensive and time consuming. In addition, with the backlog of cases pending in most courts, could take years until tried, is turning many to alternative dispute resolution (ADR) as a means of settling their disputes. (Clarkson, Miller, Jentz, & Cross, 2009, p. 41)   Mediation is a method of dispute resolution where the parties meet with the assistance of an impartial mediator tin an attempt to resolve the dispute and agree to a settlement. The goal of mediation is for all the parties to reach a mutually satisfying agreement without litigation. The final solution is not determined by a third party but by those in the dispute. One of the biggest advantages of Mediation is that it is not as adversarial in nature as litigation. It tends to reduce the antagonism between the parties, allowing them to resume their formal relationship, while minimizing hostility. For this reason, mediation is often the preferred form of ADR for disputes involving business partners, employers and employees, or other parties involved in long-term relations. (Clarkson, Miller, Jentz, & Cross, 2009, p. 42)

      Globally, we are seeing a trend towards mandatory mediation, requiring the parties to mediation prior to having the case tried in court. The European Mediation Directive (2008/52/EC) (Directive), dated 21 May 2008, is part of a European-wide initiative to promote and regulate the development of mediation throughout the EU. The Directive contains mediation procedures, which covers both cross-border and domestic disputes, only applying to claims/rights which can be freely disposed of by the relevant parties ("Diritti Disponibili") as opposed to rights which cannot be freely disposed of by the relevant individuals (this is mostly the case, for example, under Italian family law). (King, 2010)...